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Within hours of his victory in last year’s presidential election, Donald Trump dispatched his lawyers to establish a nonprofit corporation to manage his transition from private life to the presidency. This was done pursuant to a federal statute that provides for taxpayer-funded assistance to the newly elected — but not yet inaugurated — president. The statutory term for the corporation is the presidential transition team, or PTT.

In addition to paying the PTT’s bills, the General Services Administration, which manages all nonmilitary federal property, provided the PTT with government computers, software and a computer service provider. During the course of the PTT’s existence, the folks who worked for it sent or received tens of thousands of emails. The PTT ceased to exist upon Trump’s inauguration, and a receiver was hired to wind it down.

Last weekend, a lawyer for the receiver revealed a letter he sent to Congress complaining that special counsel Robert Mueller — who is investigating whether there was any agreement between the Trump campaign and the Kremlin that resulted in the now-well-known efforts by Russian intelligence to affect the outcome of the 2016 presidential election — dispatched FBI agents to the GSA looking for copies of all the PTT’s emails and that the GSA surrendered them.

How did this happen?

When the FBI is looking for documents or tangible things, it has several legal tools available. They range in their disruptive nature from a simple request to a grand jury subpoena to a judicially authorized search warrant.
The FBI request is the easiest for the government, and if FBI agents ask you for something and you give it to them, you cannot later be heard to complain that your privacy rights regarding the things you surrendered were violated. If they seize your documents pursuant to a subpoena or a warrant, they normally get to use what they have seized.

The issue becomes more complex when the FBI comes calling for documents of yours that are legally in the hands of a custodian — such as your physician, lawyer, banker or accountant. In the case of Trump’s PTT and Mueller’s wish for all PTT emails, the sought-after data — the electronic copies of all the PTT’s emails — were in custody of the GSA.

ORDER IT NOW

Anyone who has ever used a GSA computer is familiar with the warning that appears on the screen at the time of each use. It says that there is no right to privacy in the communications sent or received, as the electronic versions of those communications are the property of the federal government. This, no doubt, is the reason Hillary Clinton infamously used her husband’s computer servers during her four years at the State Department rather than the government’s.
We do not know whether Mueller’s FBI agents merely requested the electronic data from the GSA or his prosecutors obtained a grand jury subpoena. If it was a simple FBI request and if the GSA simply complied, that was a lawful acquisition by the FBI of the PTT emails, yet in that case, the GSA violated its fiduciary duty to inform the PTT of the request before it complied with it.

If the FBI came calling on the GSA with a grand jury subpoena, that means Mueller’s team must have presented evidence under oath to a grand jury and demonstrated that the sought-after items would more likely than not be helpful to the investigation. When a grand jury issues a subpoena to a custodian of records — no matter who the custodian is — it is the moral and fiduciary duty of the custodian, not the government, to inform the owner of the subpoenaed items that a subpoena has been received.

In some cases, it is also the legal duty of the custodian to inform the owner, but it apparently was not in this case. As far as we can tell, there was no written agreement between the GSA and the PTT requiring the GSA to inform the PTT of any document requests or subpoenas. Had such a request been revealed, the lawyer for the receiver of the PTT would have had an opportunity to challenge the government before a judge. Without that notice, there is no time for the challenge.

Until 1986, it was the duty of the government when seeking documents or tangible things from a custodian to inform the owner, as well as the custodian, of its intent. That fair procedure gave the owner of the records time to challenge the government before a judge. But the Electronic Communications Privacy Act of 1986 (which has nothing whatsoever to do with protecting privacy), enacted at the dawn of the digital age, did away with that requirement.

Now if the custodian remains silent in the face of an FBI request or a grand jury subpoena, the owner of the documents loses his opportunity to keep them from the government. That is what happened here.

But there is more.

The practical effect of Mueller’s acquisition of the transition emails could be devastating to White House staff who once worked for the transition. Many of them have been interviewed by the FBI while no doubt being ignorant of the fact that the FBI had read their emails. Stated differently, the FBI was in a position to lead Trump White House staff members into a lying trap — just as it did with retired Lt. Gen. Michael Flynn — by asking them questions to which the FBI already had the answers.

Lying traps are reprehensible, but they’re lawful. And they are not unique to Mueller’s practices; it is the way the feds work today. Can the FBI get away with getting the Trump team’s emails? In a word: yes. This investigation is not going away soon.

Judge Waterboy is back again this week, serving the Establishment by propagandizing against Russia while supposedly giving readers expert guidance on American governmental and legal processes.

” .. special counsel Robert Mueller — who is investigating whether there was any agreement between the Trump campaign and the Kremlin that resulted in the now-well-known efforts by Russian intelligence to affect the outcome of the 2016 presidential election — ”

Where does one go to read any specification of and see any evidence for these “now-well-known efforts”? Has anyone who still watches TV seen that question put to Mr. Napolitano?

Notice, too, how the language has been massaged since Mr. Napolitano’s column published here on December 7:

” .. the no-nonsense special counsel investigating whether any Americans aided the Russian government in its now well-known interference in the 2016 American presidential election .. ”

Rather than copy/cut/paste, the author has taken the time to alter his words:

Mr. Napolitano may be giving himself room to navigate the evolving scandals in Washington, where we are invited to take sides in the intramural battle between Team Red and Team Blue or, for the relatively sophisticated, President Trump and Deep State. But no matter how that all turns out, the processes and this article about them serve to Otherize another people and state from which our rulers can keep us safe and free.

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They already have. We will hear more bluster from Representatives Gowdy and Jordan but as always in the past nothing will happen. I have lost count, but these two have been grandstanding for years on all manner of injustice….without one victory.

Why bother to ask these silly questions? FBI gets away with anything and everything it wants to do. When a mob owns ALL the blackmail files, nobody can stop it. There is no such thing as “law”. There is only bullets, bombs and blackmail.

Mr. Napolitano is taking a radical position when he confidently claims that it is legal for the FBI to secretly read transition emails without a warrant or subpoena, or, indeed, any official authority whatsover. It seems the FBI simply asked GSA for the emails, rather than getting a subpoena— that’s the big point here, since of course GSA has to hand them over if there is a subpoena, but a court has to authorize it then. So here, the FBI had no more authority than any other agency in the executive branch. Mr. Napolitano’s position is that that’s fine. If so, it would equally have been okay for the GSA to give the Secretary of Agriculture, the IRS Commissioner, or President Obama permission to secretly view the Trump transition team’s emails during the transition. Indeed, the FBI was not acting with any authority in this case, just a request, so Napolitano’s claim is that the GSA could have given the emails to Nancy Pelosi if she’d asked. Is that really the position you want to take? It’s absurd. If that were the law, then no winning presidential candidate would ever want to make use of transition facilities and computer systems, since it would be to allow the opposition party open access to all of his plans.

who is investigating whether there was any agreement between the Trump campaign and the Kremlin that resulted in the now-well-known efforts by Russian intelligence to affect the outcome of the 2016 presidential election

For true? Great. Since they’re so well-known, please describe them in detail.

Even assuming a GSA computer warns its user ( everytime?) that data stored on it is government property how does that allow Mueller or anyone else to seize the emails of the party not using a GSA computer? No warning was given to the party receiving an e-mail or replying to an email sent from a government computer.

I recognize a wiretap records both ends of a telephone call or email but that requires a judge to issue the warrant ( and we can hope the judge has more respect for the Constitution than the creep writing this does).

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I take it then, that non-disclosure agreements with corporations are similarly invalid on the basis of freedom of speech? Seems to absolve Snowden and all the plethora of punished whistleblowers who spoke out. Yet it seems that speech is not actually free in all these cases, after all, de facto.

Not sure where you're coming from -- neither the column nor the Constitution uses "press" as opposed to speech.
I hope you're not endorsing the notion of Mr. Pompeo that the freedom of speech is limited to American publishers. I have a natural right to see and hear, irrespective of the speech's...

On a related note: the freedom of the press is that freedom possessed by people to publish their views. It comes from an age when people would print off handbills with a small press and distribute those bills. It does not mean that there is some sort of entity named "The Press" and that this "Th...

Maybe in heaven, or Wakanda, people have free speech in the same way they have arms and legs. Everywhere else free speech is limited by government. All it takes for the constitution to become meaningless is for the government to fail to enforce it. That's where we are now.
FU judge. I know whi...

" The point of this piece is about the freedom of speech." I doubt it. Having read "Judge" critically here for several months, I believe that the point is to highlight the scandal du jour. Many of his columns are structured like this one, Establishment messaging wrapped in a civics lesson taug...

Judge Waterboy is back again this week, serving the Establishment by propagandizing against Russia while supposedly giving readers expert guidance on American governmental and legal processes.
Perfect description. I stopped reading Napolitano many months ago as a result. I thought I would give...